The European Litigation Funding Programme (ELFP)

The European Litigation Funding Programme will follow a more individual approach and will essentially focus on combating the financial barriers hindering the access to justice for the victims of gross human rights violations.

The HRL Foundation has noticed a real paradox within European countries regarding the defence of human rights: Europe is indeed known for its humanist values and likes to see itself as a great defender of human rights. However, in practice, most European countries are not supporting human rights lawyers (i.e. the legal aid provided by the State is generally largely insufficient to cover the fees of litigation and, in some countries, even subject to important cuts), with the consequence that many human rights defenders end giving up, while the others, devoted to their work, have no choice but to work under financial conditions barely acceptable.

These human rights defenders are becoming marginalized and this has important consequences for the future of human rights protection. The need for a financial system that is not dependant on States’ funding has therefore become crucial.

In addition, the lack of financial resources of the victims can have a direct impact on the quality of their defence. On the one hand, the low wages received through legal aid do not allow the lawyer representing the victim to dedicate too much time on the preparation of the case. However, on the other hand, the lawyer representing the State will spend the appropriate amount of time to ensure the best possible defence since he does not face such limitations on his fees. This inevitably results in a flagrant inequality of arms in the proceedings.

The HRL Foundation has therefore designed a sustainable financial system aimed at supporting victims of gross human rights violations as well as their dedicated human rights lawyers that are confronted with significant financial barriers.

II. Method of work

A system that is financially sustainable – i.e. a system that can endure without incurring losses and that secures a healthy future – is indeed necessary to guarantee the continuity of effective human rights litigation. The system rests on three pillars, creating long-term sustainability:

1. Human Rights Litigation Funding: this is a new concept which entails that litigation is funded for the exclusive purpose of human rights protection. The HRL Foundation will financially support litigations before the European Court of Human Rights, by advancing the costs to the victims deprived of sufficient financial means.

If the case is lost, the loan will then turn into a gift.

If the case is won, no portion of the compensation will be claimed by the Foundation, as Human Rights Litigation Funding works on a non-profit basis.

2. The wrongdoer pays: this principle is part of the Court’s rules and entails that upon success of the case, the respondent state will be ordered to pay not only a compensation to the victim (“just satisfaction”) but also the costs and expenses related to the case. This will allow the victim to reimburse the loan to the Foundation.

3. The returns are reinvested: this principle provides continuity and is based on the idea that the returns of each successful litigation are to be reinvested in more litigation, funding more cases with the same input.

Based on this financial system, the HRL Foundation will accept to fund cases of gross human rights violations before the ECtHR that meet the defined admissibility criteria.

The request for funding will have to be submitted by the lawyer or NGO representing the victim. An application form will be available on the Foundation’s website for this purpose.

Here are the main admissibility criteria that will be carefully examined by the Foundation before answering to any funding request:

Proof of relevant background and adequate qualification of the lawyer or NGO concerned in Human Rights litigation;

Lack of financial means of the victim(s);

Deficiency of the legal aid available (inexistent or largely insufficient);

Gravity of the violation;

Credible version of the facts;

Chances of success;

Declared admissibility of the application before the European Court of Human Rights.

It is important that the funding of the HRL Foundation intervenes only after the application has been declared admissible by the ECtHR, as it avoids that a refusal of funding would deter the In the beginning, only cases of severe human right violations (related to article 2 or 3 of the Convention), with high chances of success will be accepted, in order to ensure a successful start of the Programme. Later on, and if the system has proven to be effective, it will be able to expand to other types of cases.

The following table presents an estimation of reasonable lawyer’s fees in line with the Court Rules: costs (± €45/h) + fees (± €45/h): ± €90/h. It has been estimated that a case before the ECtHR would require a minimum average of 50 hours of work. With €4.500, the HRL Foundation would then be able to fund one case before the European Court of Human Rights. The aim of the Foundation is to facilitate the access to the ECtHR for 20 to 50 cases between the first two or three years.

Costs per hour (in €)

Total fees per hour (in €)

Average time (in hours)

Costs (in €)

Total fees (in €)

Per case

45

90

± 20 to 80 = 50

2.250

4.500

20 cases

45

90

± 400 to 1600 = 1.000

45.000

90.000

50 cases

45

90

± 1.000 to 4.000 = 2.500

112.500

225.000

A case will be funded by the Foundation only provided that it meets the required, the HRL Foundation puts forth the assumption that 80% of the cases funded will be successful, while 20% could be lost. For these hypothetical 20% of lost cases, the loan given by the Foundation to the victim will turn into a gift, instead of being recovered and reinvested.

It is important that the funding of the HRL Foundation intervenes only after the application has been declared admissible by the ECtHR, as it avoids that a refusal of funding would deter the lawyer to submit an application before the ECtHR anyway. This system encourages on the contrary the lawyers to submit an application and do their best of work, with the hope to receive a financial support from the Foundation. In addition, it allows to ensure that the request meets effectively all the admissibility requirements before receiving any funding.
The costs include all fixed and variable operating costs, as the office rent, transportation, material supplies, salaries, etc.